While all legal decisions have something interesting to tell us about employment law, there are those cases that lawyers keep in their back pocket to serve as a cautionary tale for clients about the potential cost of HR blunders. Ojanen v Acumen Law Corporation, a decision of the British Columbia Court of Appeal, is, without question, one of those cases. We often see appeal courts reducing damage awards on appeal, in order to bring them more in line with established case law. Ojanen is certainly an exception – in this case, the behaviour of the employer in question was so egregious that the Court of Appeal was compelled to more than triple the award granted at trial.
Ms. Ojanen was hired as an articling student by Mr. Paul Doroshenko, sole proprietor of Acumen Law, a firm specializing in driving related infractions. Her 12 month articling term commenced on May 24, 2016 and was to be interrupted by the ten-week Professional Legal Training Course (the “PLTC”). Ms. Ojanen was scheduled to commence the PLTC on September 12, 2016.
On September 9, her last day of work before starting the course, Ms. Ojanen requested and received a performance review from Mr. Doroshenko which was largely positive. However, things went downhill rapidly when, between September 10 and 14, Mr. Doroshenko discovered a website titled “B.C. Driving Prohibitions Blog”. The blog offered information regarding driving related offenses, similar to some of the content on Acumen’s own blog. In investigating the blog, Mr. Doroshenko learned that it was operated by Ms. Ojanen and her husband.
Mr. Doroshenko was incensed by this discovery; he felt that the blog threatened Acumen’s competitive position as a leading firm in the area of “driving law”. However, despite seeing Ms. Ojanen at the office on the evening of September 14 while she was returning a file, Mr. Doroshenko did not mention the blog or ask her about it.
Instead, Mr. Doroshenko terminated Ms. Ojanen’s employment, and served her with a notice of action alleging damages for breach of contract, theft, wrongful use of Acumen’s marketing materials, and trespass for entering Acumen’s premises after hours without permission. Shockingly, the termination letter and claim were served upon Ms. Ojanen while she was in class, in front of her classmates. To add insult to injury, the termination letter also informed Ms. Ojanen that her alleged misconduct had been reported to the Law Society.
Ms. Ojanen commenced a claim for wrongful dismissal against Acumen and Mr. Doroshenko personally. She did not complete the PLTC or obtain alternate articles, and as of the date the appeal was heard, she had not worked for a law firm since Acumen.
The trial decision
At trial, the judge dismissed Acumen’s claims against Ms. Ojanen, noting that they were simply not supported by the evidence.
In response to Ms. Ojanen’s claim for wrongful dismissal, Acumen and Mr. Doroshenko argued that she was not entitled to any damages, as her employment had been terminated for just cause. It put forth a long list of alleged incidents of misconduct, including that Ms. Ojanen had “entered into competition with Acumen by creating the Blog”. Ultimately, the judge concluded that the allegations did not constitute cause for dismissal or justify the unilateral termination of the articling agreement.
In assessing damages, the judge found that Ms. Ojanen was entitled to be put in the position that she would have occupied had she not been dismissed. She was awarded damages of $18,934 for breach of the employment contract, representing the difference between what she would have earned during her articling period, and what she was actually paid, as well as a nominal $10 for the termination of the articling agreement. Notably, the judge acknowledged that it would have been unrealistic for Ms. Ojanen to secure another articling position and mitigate her damages given that Acumen had effectively blacklisted her by reporting her to the Law Society and filing a notice of civil claim against her.
Ms. Ojanen argued that she was unable to pass the PLTC exams due to the stress and trauma caused by her dismissal and the claim against her, and that this resulted in the loss of her opportunity to become a lawyer. However, the judge found that any such damages would be speculative, and declined to award them.
He did, however, award aggravated damages of $50,000.00 arising from Mr. Doroshenko’s bullying behaviour, noting that his and Acumen’s actions were unfair and undertaken in bad faith. The judge noted that the power imbalance between employer and employee was especially significant in this case, as Ms. Ojanen was a young woman just starting her legal career, placing her in a “terribly vulnerable” position. The judge also accepted that Ms. Ojanen had suffered “profound emotional consequences” as a result of Acumen’s actions.
On appeal, Acumen argued that the trial judge had failed to consider the “special relationship” between a principal and articled student in concluding that Ms. Ojanen’s dismissal for cause was not justified. The Court dismissed Acumen’s argument, noting that the principal-articled student relationship “does not require the application of different employment law principles”.
In her cross appeal, Ms. Ojanen argued that the trial judge erred in not awarding her damages for her delay in becoming a lawyer, or punitive damages to sanction Acumen’s bad faith conduct. The Court agreed with her, concluding that she had clearly lost the opportunity to become a lawyer due to Acumen’s actions. In assessing damages, the Court noted that awards for loss of opportunity will be, by their nature, a matter of assessment, with no way to determine with certainty what would have happened absent the wrongful conduct. Considering the various possibilities, the Court awarded Ms. Ojanen an additional $100,000.00 in general damages.
The Court also had no hesitation in concluding that the conduct of Acumen and Mr. Doroshenko warranted an award of punitive damages. It awarded Ms. Ojanen an additional $25,000.00 in punitive damages, against both Acumen and Mr. Doroshenko jointly and severally. She was also entitled to the costs of the appeal and cross appeal.
Ojanen serves as a powerful warning for employers about the high costs of being unnecessarily cruel in the course of dismissal, including making baseless allegations of cause.
In this case, the employer seems to have gone out of its way to make an example of this employee by dismissing her for cause, pursuing legal action against her on the basis of allegations for which there was little evidence, and alerting the Law Society to her alleged misconduct. However, employers should note that it is entirely possible that Ms. Ojanen could still have been awarded general damages, even if none of these other factors were present, based purely on the humiliating and public nature of the dismissal itself. In other words, it would be a mistake to assume that the result in Ojanen was due to the “perfect storm” of bad behaviour on the part of the employer – any one of these infractions, on their own, may have been grounds for additional damages.
Employers should always be cognizant of the inherent power imbalance between them and their employees and conduct themselves in good faith. As we have seen, the consequences for failing to do so can be significant.
By Brittany A. Taylor